No
author, let alone a first-time author, could ask for anything more than this rich
and rewarding symposium on my new book, The
Second Creation: Fixing the American Constitution in the Founding Era. Each
of the commentators—all distinguished constitutional scholars—have charitably
entered into the spirit of what I was trying to do in the project and have
thoughtfully engaged with what I had to say. I am gratified that so many of
them think the book makes important contributions to our understanding of the
early Constitution. And I am just as appreciative of the substantive ways in
which they have complicated or challenged aspects of my argument. My deepest
thanks to all of them for launching such an illuminating conversation.

I am
especially pleased that these commentators have drawn out the implications of
my arguments for modern debates over constitutional theory and interpretation.
This comes as no surprise since the symposium, by design, pulled together legal
scholars working in these particular areas. As a historian, I set out
principally to write a history of the early Constitution, not a work of
constitutional theory. And while I certainly wrote the book in the hope that
the former would hold important implications for the latter, because my primary
focus was on constructing a coherent and compelling interpretation of the
American Founding, I did not explicitly or extensively foreground my
understanding of the book’s connections to modern constitutional debates. Because,
as Bernadette Meyler notes, I leave many of these “links largely unstated,” I
assumed that others might draw different conclusions from me or productively extend
my findings in ways I had not anticipated. Many of the commentators have done
just that, so in addition to offering a chance to respond to specific
challenges raised in the reviews, this response also affords me the opportunity
to speak more concretely about what I take to be the book’s implications for
debates over constitutional interpretation.

The
commentaries cover a lot of ground, but there are a handful of topics that dominate
the discussion. Accordingly, I will focus my remarks on a few important issues:
the study of constitutional language, the meaning of constitutional fixity and the
necessity of our brand of constitutionalism, and originalism. I am not
surprised that readers kept returning to these themes, as they were the issues I
spent the most time struggling to understand. Elaborating on them is the best
way to push the conversation forward. I will consider each of these three
issues in distinct installments.

I. Constitutional Arguments vs.
Motivations

In his
otherwise enthusiastic and charitable discussion of my book, John Mikhail criticizes
me for focusing too much on constitutional language and argument and neglecting
“the complex interplay of economic interests, regional alignments, and
political power.” No doubt the debates at the heart of my book were conducted
by often deeply interested political actors engaged in fierce contests over
power, wealth, and regional influence. It would be impossible to claim that
they were not motivated, at least some of the time, by something other than the
right interpretation of the Constitution. Precisely because I not only appreciated
the likely attraction of Mikhail’s criticism but very much believe that the
factors he emphasizes are of great consequence, I went to great pains in the
Introduction to explain why I focus on language and argument and what I think
study of them is able to illustrate. My discussion there, which builds on prior
work, articulates my longstanding belief that the enduring division—between the
study of what are often termed “ideas” and “interests”—that has partitioned
historians of the Founding since at least Charles Beard is a false and
pernicious dichotomy. Neither ideas nor interests can be considered prior to
the other nor can either be fully reduced to the other’s terms. Which of the
two we focus on in our historical investigations ultimately hinges, I think, on
the kinds of questions we are trying to answer. Depending on what we are trying
to explain, interest-based motivations might play an enormous, even
determinative role or they might tell us very little. I focus on constitutional
argument because of the particular dynamics I was trying to illuminate. Thus,
while I think Mikhail makes a strong case for how regional and economic
interest created and sustained constitutional coalitions at the Founding, I do
not think that those particular factors help us understand my chief focus: why
constitutional argument (or at least certain
constitutional arguments) developed in one precise way and not another. In this
regard, I take us to be talking past, not against, one another.

Mikhail
is certainly right that the issue of implied powers is pivotal to the story I
chart and, indeed, much of what I claim to know about the subject is informed
by his own marvelous scholarship. I think he is right that if we are trying to
determine why certain people defended implied powers then we need to understand
the political, economic, or regional interests that no doubt motivated them. In
deciphering those complex intentions, we would surely have to understand the
paramount importance of slavery, western lands, northern finance, and their
perceived relationship to national power in people’s political and ideological
calculations. But suppose we are asking a different question—not whether or why
a particular political actor championed implied powers but how they went about doing so and what the consequences of those
particular choices were for how people more talked about the Constitution?
Economic and regional interests cannot, on their own, explain the particular
arguments that somebody made in defense of implied powers, why those arguments
did or did not gain purchase in a particular moment, or—far more important
still—how those arguments took on lives of their own far beyond the immediate
debate in which they were generated.

Consider
the debate over chartering a national bank in 1791. Interested northerners bent
on carrying Alexander Hamilton’s recommendation into effect could have defended
the national government’s right to incorporate a bank on many distinct grounds,
each of which implied something slightly different about the Constitution’s
fundamental properties and character. They could have claimed that the
Constitution was necessarily unfinished and that its unfinished state implied that
Congress enjoyed wide discretionary authority to fill in its gaps and carry out
its deeper purposes. Alternatively, they could have claimed that the
Constitution, by setting up a national government, automatically gave the
federal government certain distinctively national powers independent of
anything else the document actually said. Different still, they could have
claimed that some particular provision in the Constitution, such as the
“necessary and proper” clause, fairly licensed this power. Or, finally, they
could have claimed that the Constitution was seemingly unclear but that
historical evidence from the Constitutional Convention or ratification debates
helped clarify the Constitution’s true meaning on the subject. All of these claims
were available and any one of them could have been used to bolster implied
powers. Yet each one disclosed a distinct image of the Constitution and the kind
of object that it was. Some arguments treated the Constitution as an unfinished
system while others treated it as a more or less finished text; some arguments
thought it was important to start and finish with the Constitution’s words
while others suggested that this was a categorical mistake; some arguments
assumed that the Constitution’s mysteries could be sorted out by better
understanding the nature of national governance while others encouraged
excavating the history of its creation.

What
mattered to me, in the particular story I was trying to tell, was why some of
these arguments acquired momentum and began crowding out viable alternatives—how,
as Sandy Levinson puts it, a particular “constitutional language-game emerged
out of the intense political conflicts of the 1790s.” Only some of the
arguments that the bank debate generated transcended the narrow parameters of
that dispute and became compelling, forceful premises for completely different
kinds of arguments in unrelated contexts. Only some of them, for instance, were
picked up, revised, and extended in the much different debate over
treaty-making a few years later. Since different arguments implied different
things about what the Constitution was and how one might credibly extract
content from it, it mattered to my story which arguments became authoritative
and which available alternatives withered. And I do not think that even the
most finely-wrought portrait of interest-based political action can explain how
some arguments were acquiring force and thus how some ways of thinking about
the Constitution were becoming increasingly instinctive and natural. I have no
doubt—as I otherwise imply in the book—why the bank vote in the House broke
down largely along regional lines. And I am perfectly willing to accept that
these motivations explain why Theodore Sedgwick, Elias Boudinot, and John
Vining endorsed implied powers and why James Madison and James Jackson were
wary of them. (We never want to be too reductive, but Levinson’s invocation of
“motivated reasoning” certainly seems relevant here.) That said, I do not think
that simply being for or against implied powers explains why any of these
individuals, among all the available choices, settled on the precise
argumentative strategies that they did or why some justifications endured and
others did not.

In this
regard, even though he suggests as much in his commentary, I do not think that
another chapter or even section could have accommodated Mikhail’s request. I
think we would need another book entirely, one that asks different questions
about early constitutional development and aims to accomplish different things.
It would be a book no less important or instructive and one that I very much
hope Mikhail himself writes. Not only is he best suited for the task—with his
deep expertise in the relevant constitutional history and his evident skill at
identifying and tracing constitutional-political coalitions and interests—but
the field would benefit from a deeper understanding of how certain conceptions
of federal implied powers were strengthened or weakened within the dynamics of
this ferocious culture war over slavery, economic development, and regional
dominance. But that book, illuminating as it no doubt would be, would not
easily expose or chart the precise constitutional transformation that is
central to my narrative. Founding-era Americans could have debated implied
powers for all of the interested reasons that they did without fundamentally
transforming their constitutionalism. Why they cared about implied powers,
then, will not explain why debates over implied powers and related
constitutional matters ultimately remade constitutional thinking in the precise
and consequential manner in which they did. And that transformation—the result not the cause of debate—is ultimately what my book tries to elucidate. It
also explains my choice of debates. Mikhail fairly asks why I fail to cover the
explosive 1790 congressional debate over slavery petitions. It was not simply because
I needed limit myself (important though that is) nor because that debate was unimportant
(the opposite is true). Because I was not writing a general history of early
constitutional and political debate, but instead a history of how a peculiar
brand of constitutional fixity was invented and entrenched, I focused on the
particular debates that, in my judgment, did the most to effect that specific
transformation.

In the next installment, I will turn directly to
the idea of constitutional fixity itself.

Jonathan Gienapp is Assistant Professor of History at Stanford University. You can reach him by e-mail at jgienapp at stanford.edu